Annulments: a Rare Legal Mechanism

 In Family Law

Annulments in Ontario are governed by the Annulment of Marriages Act. Annulments are a rare legal mechanism used to address relationship breakdown as an alternative to divorce. An annulment is a recognition by the courts that a marriage was never valid in the first place, whereas divorce presupposes a valid marriage.

Nullity results from a deficiency of the original marriage which prevents it from having come into being. This means that an annulment can only occur if a party can demonstrate that either a marriage lacks formal or essential validity.

The formal validity of marriage falls under provincial jurisdiction. For a marriage to lack formal validity, there has to be defect in following the provincial rules for the formality of a ceremony (e.g. the marriage license was not signed or registered, there were no witnesses, the officiant was not qualified, etc.).

The essential validity of marriage is addressed under federal jurisdiction and concerns the capacity of parties to marry. There five essential factors, which include:

  1. The requirement that the marriage not be outside the prohibited degrees of blood relation (incestuous unions);
  2. That there be no prior existing marriage (i.e. bigamy);
  3. One or both of the parties did not have the capacity to consent (capacity can be based on either age or mental disability);
  4. The marriage was entered into under fraud, duress or fear. This includes threats of physical violence and cases of mistaken identity. Marriages entered into for immigration purposes will not be annulled solely for that reason;
  5. The marriage was not consummated. This ground is a has a very narrow interpretation: a refusal to consummate a marriage is not sufficient to have a marriage annulled. A spouse needs to be unable to consummate the marriage due to an incapacity or disability, either physical or psychological. In the recent Ontario case, an annulment was granted as a result of the respondent’s severe anxiety about physical intimacy.

Proving that a marriage lacks essential validity is very difficult to do, and accordingly, few marriages are granted annulments in Ontario.

This blog post was written by Michelle Williams, a member of the Family Law team.  She can be reached at 613-369-0362 or at michelle.williams@mannlawyers.com.

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